Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Rejections
Claim Rejections - 35 USC § 112
1. The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
2. Claim 18 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
A. The instant claim 18 does not describe the basis of the ratio recited therein, e.g. weight, volume, molar, or any other ratio basis. It is therefore unclear if the claimed ratio is a weight ratio, a volume ratio, a molar ratio, or some other type of ratio. This is not seen as being defined in the instant specification. The examiner notes WO 2019/010166 A1, King, III et al., page 34, the first full paragraph. It is noted that King’s ratios are given as “weight/weight” ratios. It is conventional to state the basis for the ratio. It is noted that ratios may also be weight/volume, which is why King specifies the basis for the top and bottom values.
The scope of the instant claim 18 is therefore not clear.
For examination purposes, the ratio will be taken as including any type of ratio.
Claim Rejections - 35 USC § 103
3. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
4. Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2019/010166 A1 King, III et al. in view of EP 0057238 Shibata et al.
Regarding claims 1-11 and 13-20:
King, III discloses compositions containing polyolefin, phosphites, and acid scavengers at page 28, the last two lines of text, noting the organic phosphites and diphenyl alkyl phosphites, the phenyl dialkyl phosphites bridging pages 28-29, and the phosphites of page 29, the entire page, the phosphites of page 30, the entire page, the phosphites of page 31, the entire page, the phosphites of page 32, the entire page, the amounts of phosphite stabilizers encompassed by the last full paragraph of page 33, and the paragraph bridging pages 33-34. Note the acid scavengers of page 34, the fourth full paragraph. King, III, page 35, the first two paragraphs, specifies the amounts of the additional additives including the acid scavengers. King, III, page 47, the fourth full paragraph discloses using hydrotalcites as the acid scavengers. King, III, page 48, the second through third lines discloses using zinc oxide as the acid scavenger.
King, III, page 51, the first full paragraph, discloses using polyolefins, including mixtures thereof in their compositions. The mixtures of different types of polyethylene, polypropylene/HDPE, polypropylene/LDPE, and polypropylene/HDPE/LLDPE are noted particularly. King, III, page 53, the second full paragraph, discloses polymer mixtures containing compatibilizers which give polymer mixtures which are not single phases. King, III, page 53, the third full paragraph, discloses compatibilizer olefin block copolymers. King, III, page 55, the third full paragraph, discloses mixtures of polyolefins and their high melt strength. King, III, page 56, the first full paragraph, discloses polypropylenes made with transition metal catalysts or metallocene catalysts.
King, III, page 51, the third full paragraph discloses using polypropylene copolymers of ethylene and alpha olefins.
King, III, the last four lines of page 56 and the sentence bridging pages 56-57, discloses making their compositions in the form of a masterbatch. King, III, the last full sentence, discloses using about 2% to about 40% by weight of additives in the masterbatch, which includes amounts of phosphite antioxidants falling within the scope of the instantly claimed amounts thereof considering the ratios of King, III, first full paragraph, that allow the higher amounts of phosphite antioxidants. King, III, the sentence bridging pages 56-57, states that the masterbatch polymer need not be the same as the polyolefin, which implies that it may be the same as the polyolefin.
King, III, page 62, the paragraph after “Examples”, discloses phosphite stabilizers used in their examples. The instant specification, paragraph [0031], describes the instantly claimed liquid phosphites as being liquid at a temperature of less than about 60℃. The tris-nonylphenyl phosphite has a melting point of about 6℃ and therefore falls within the scope of the instantly claimed liquid phosphite antioxidant. Note the instant specification, paragraph [0003], which describes it as a liquid phosphite antioxidant for polyolefins. The tris-nonylphenyl phosphite, Doverphos LGP-11, and mixture of 2,4-bis(1,1-dimethylpropyl)phenyl and 4-(1,1-dimethylpropyl)phenyl phosphites of King, III are liquids based the disclosures of the instant specification, paragraph [0003], King, III, page 62, the paragraph after “Examples”, and a Google search respectively. These exemplified phosphite antioxidants of King, III fall within the scope of the instantly claimed component a. King, III therefore encompasses the ingredients and amounts thereof of the instantly claimed component a.
King, III, page 33, the third full paragraph gives the amounts of organophosphorus stabilizers in the final composition, not the masterbatch. These amounts of organophosphorus stabilizers in the final composition and the amounts of additional additives of King, III, page 35, the first full paragraph, which includes the acid scavengers of King, III, gives amounts that fall within the scope of those of the instantly claimed component b.
King, III does not limit the densities of their polymer mixtures to those of the instant claims but does encompass using immiscible polymer blends since the polymer blends disclosed by King, III would necessarily have separate domains of each of the polymers of the polymer mixtures disclosed by King, III.
Shibata discloses a mixture of polyethylene copolymers and polyolefin copolymers which fall within the scope of the instantly claimed components (i) and (ii) at the abstract, page 1, lines 2-6, page 2, lines 23-37, noting the densities of lines 27-28 and 33, page 7, lines 31-36, noting that the polyolefin copolymers (B) with densities of 0.870 to 0.900 g/cm3 give improved flexural resistance, page 9, lines 29-30, noting the use of additives, and page 12, lines 1-37, noting the copolymers of lines 2-3 and 31 and their densities at lines 24-25 and page 13, line 31, both of which fall within the scope of the instantly claimed polymers and polymer densities of the instantly claimed components (i) and (ii).
It would have been obvious to one of ordinary skill in the art prior to the instantly claimed invention to make a masterbatch according to King, III using the mixture of polymers of Shibata which fall within the scope of the instantly claimed components (i) and (ii) and which contain the instantly claimed amounts of liquid phosphite antioxidant and the instantly claimed amounts of inorganic solid coadditive capable of acting as an acid neutralizer because such ingredient combinations and amounts thereof are encompassed by King, III, as discussed above, and the resulting composition would have been expected to have the physical properties of the polymer combinations of Shibata, including the properties explicitly discussed in Shibata, such as the improved flexural resistance of page 7, lines 31-36, and the properties inherent to the polymer mixtures of Shibata coupled with the antioxidant properties contributed by the liquid phosphites exemplified in King, III and the acid neutralizing effects of the acid scavengers, such as the hydrotalcites, of King, III in proportion to the amounts of phosphite and acid scavenger used, noting that such amounts of phosphites and acid scavengers are encompassed by King, III, as discussed in the entirety of the above discussion.
This makes obvious the instant claims 1, 2-3, noting Example 1 of Shibata, pages 12-13, and claims 4-11, and 13-20.
Regarding claim 4:
The instant claim 4 further describes the ethylene-vinyl acetate copolymer but does not require it to be used or present in the masterbatch. The above obviousness statement therefore makes obvious the instant claim 4 with the other copolymers of claim 1 because claim 4 does not require the polymer described therein to be used.
Regarding claims 5-6 and 16:
The copolymers of the above obviousness statement are non-polar hydrocarbons. Note the polyolefins of Example 1 of Shibata. The liquid phosphites of King, III, which are discussed above, are polar with a large amount of non-polar hydrocarbon. It is taught that like polarity dissolves like polarity in undergraduate organic chemistry courses. The combination of non-polar substances with polar substances is well understood to give phase separation. The degree of solubility and phase separation is dependent on the degrees of polarity or apolarity of the mixed compounds. This is a function of each compounds’ amounts of hydrophilic content and hydrophobic content. Considering that the liquid phosphites of King, III contain some hydrophobic, apolar hydrocarbon groups and some polar phosphite groups, they would have been expected to be only partially soluble in the polyolefins of King, III and Shibata. Shibata, page 3, lines 25-33, particularly line 33, discloses this polyolefin to have oil resistance, which indicates that oil is not soluble in it. Therefore, the liquid phosphites of King, III, which are similar to oils, would not have been expected to be very soluble in the copolymer (A) of Shibata’s Example 1. That copolymer falls within the scope of the instantly claimed “first carrier”. The phosphite solubilities of the copolymer (B) of Shibata’s example 1 has a density below that of Shibata, page 3, lines 25-33 and therefore would have been expected to have slightly greater solubility in Shibata’s copolymer (B) of their example 1 for reasons further discussed above. The liquid phosphites of King, III therefore would have been expected to necessarily and inherently possess the solubilities of the instant claims 5 and 6. See MPEP 2112.
The first obviousness statement therefore makes obvious the instant claims 5-6 and 16.
Regarding claim 12:
King, III, page 34, the fourth full paragraph discloses hydroxylamines as additives. “Hydroxylamines” is taken as meaning hydroxyl groups attached to amino nitrogen by a hydrocarbon group, such as hydroxyethylamine. See King, III, the paragraph bridging pages 50-51. These amines are bases and can therefore neutralize acid. The hydroxylamines of King, III therefore are necessarily the organic acid neutralizers of the instant claim 12.
It would have been obvious to one of ordinary skill in the art prior to the instantly claimed invention to use the hydroxylamines of King, III in the compositions of the above obviousness statement because they are disclosed as additives by King, III and would have been expected to give their known properties, such as being bases, to the compositions of King, III.
Coupled with the first obviousness statement, this obviousness statement makes obvious the instant claim 12.
Regarding claim 18:
The exemplified polymer mixture of Shibata’s Example 1 gives a ratio of about 9:1, using the requirements of the instant claim 18, which falls within the scope of the instant claim 18. See Shibata, page 13, lines 35-36.
The first obviousness statement therefore makes obvious the instant claim 18.
Regarding claim 19:
The benzofuran-2-one compounds containing phosphorous required by King, III, noting page 1, the first paragraph, fall within the scope of the polymer additives of the instant claim 19 as do the additives of King, III, page 34, the last two paragraphs.
It is noted that King, III, page 51, the first full paragraph discloses mixtures of three polymers and generally discloses mixtures of polymers, which encompasses using three or more polymers, which falls within the scope of the additional carrier polymers.
It would have been obvious to one of ordinary skill in the art prior to the instantly claimed invention to use the additional polymer of the instant claim 19 in the compositions of King, III, including with the additional additives of King, III because such additional ingredients in King’s compositions are encompassed by King and would have been expected to give only predictable results to the compositions of King, III in view of Shibata of the above obviousness statement.
Coupled with the first obviousness statement, this obviousness statement makes obvious the instant claim 19.
Regarding claim 20:
Claim 1 requires the polymers of component c to be immiscible. Therefore, the “cocontinuous phases” of the instant claim 20 necessarily requires the phases to be immiscible with each other. The mixture of polymers of Shibata’s Example 1 discussed above necessarily gives at least one of the carrier dispersions encompassed by the instant claim 20 because it contains polymers having the properties of the instantly claimed (i) and (ii) of component (c) and the amounts thereof which is expected to necessarily give the same phase orientation as the instantly claimed compositions, including the instant claim 20. See MPEP 2112.
The first obviousness statement therefore makes obvious the instant claim 20.
Regarding all of the claims of this rejection:
There is no showing of any unexpected result stemming from any difference between the instantly claimed masterbatches and those of the above cited prior art which is commensurate in scope with the instant claims and which compares to the closest prior art. See MPEP 716.02(d) Unexpected Results Commensurate in Scope With Claimed Invention [R-08.2012].
The examples of the instant specification are noted. However, the instant claims are not limited to the particular ingredient combinations and amounts of those examples. It is noted that the molecular weights of the polymers, the polydispersities of the polymers, the amounts of the polymers, the particulars of the polymers and other particulars not limited by the instant claims materially affect the properties of the masterbatches. It is noted that the examples do not use all of the phosphites, amounts of phosphites, inorganic solid coadditives, amounts of inorganic solid coadditives encompassed by the instant claims. These particulars materially affect the masterbatch properties. The instant claims are not limited to the examples’ properties inherently, because they are not limited to the compositions of the examples, or specifically. It is therefore not seen that the instantly claimed masterbatches necessarily require the properties of the examples of the instant specification over the entire scope of the instant claims.
Conclusion
5. Any inquiry concerning this communication or earlier communications from the examiner should be directed to PATRICK D NILAND whose telephone number is (571)272-1121. The examiner can normally be reached on Monday to Friday from 10 to 5.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert S Jones, can be reached at telephone number 571-270-7733. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PATRICK D NILAND/ Primary Examiner, Art Unit 1762